The Increasing (Ab)use of Commitments in European Antitrust Law: Stockholm Syndrome

Stefano Grassani, Mar 28, 2013

If an “EU antitrust hot topic of the month” award were to be attributed for March 2013, the prize would certainly go to the issue of commitments pursuant to article 9 of Regulation 1/2003, which made the front page of most antitrust newswires and blogs thanks to two notable cases.

On the one hand, on March 6, 2013, the Commission adopted a decision imposing a fine of U.S.$794 million on Microsoft for failure to comply with undertakings offered, in 2009 to the European Commission, in exchange for the closing of the abuse-of-dominance investigation related to the alleged tying of Internet Explorer and the Windows operating system. On the other hand, on March 13, 2013, the Commission published in the Official Journal of the European Union the text of its December 2012 decision where it had accepted commitments from Apple and four publishers in connection with a supposed concerted practice as to retail prices of e-Books.

Ten years after the enactment of Regulation 1/2003, these decisions give us the occasion for a few reflections on the subject of the institutional and philosophical implications that stem from the insertion in the EU framework of commitments as means to preempt further public enforcement action on the merits.